Procedural History

By Summons dated April 17, 2009, Plaintiff A. C. (hereinafter "Wife" or "Mother") commenced this action for divorce against Defendant J. C. (hereinafter "Husband" or "Father").Wife filed a Verified Complaint on or about March 15, 2010. Husband filed an Answer to the Verified Complaint on March 22, 2010 and asserted counterclaims. Both parties seek, among other relief, an Order of Sole Custody for the only child of this marriage O. S. C. At the Preliminary Conference held on May 8, 2009, the parties agreed that a divorce would be granted to Plaintiff Wife on the grounds of constructive abandonment.^[FN1]

This matter was transferred to this Matrimonial Part for all purposes on or about July 6, 2011.^[FN2] At the time of transfer Wife was represented by Court appointed counsel, Mr. Anthony Morisano Esq. Prior to Mr. Morisano's appointment, Wife was represented by Philip Kaplan Esq. who was privately retained from the commencement of this action until October 18, 2010 when he withdrew as counsel without objection. Mr. Morisano was relieved as counsel, on application of Husband, by this Court's Order dated August 26, 2011. On August 29, 2011 Harry Chiu Esq. was appointed, pursuant to Judiciary Law §35, to represent Wife on the issues of [*2]custody and visitation. Wife represented herself with respect to her claims for maintenance, equitable distribution, child support, and counsel fees.

Defendant Husband was initially represented by Jay Baum, Esq. from the commencement of this action until June 3, 2010 when he was relieved without objection. Husband represented himself until he retained Mr. Baum for a second time on or about October 15, 2012 to represent him at trial.

Thomas Conigatti Esq. represented the subject child O.C. from the commencement of this action until Husband moved to have him disqualified on or about March 29, 2011. Mr. Conigatti was relieved on Husband's application, without objection, by this Court's Order dated August 26, 2011. Mr. Conigatti was replaced by Marc Berk Esq. who was appointed pursuant to Judiciary Law §35 to represent O.C. by Order dated August 29, 2011.

On the consent of the parties, Dr. Raymond Havlicek was appointed as the forensic evaluator by Order dated May 8, 2009. His initial report dated October 31, 2009 and his updated report dated May 6, 2012 were admitted into evidence at trial without objection. Dr. Havlicek testified at trial on November 12, 2013. Neither party objected to his qualification as an expert in the field of forensic psychology.

At trial, Wife attempted to prove that Husband attempted to alienate the subject child from her. Wife also attempted to establish that Husband continuously abused his status as a police officer to harass and intimidate her from pursuing her custodial rights. Wife further argued that because Husband's sibling is an attorney, he has had the benefit of a ghost writer to assist in his efforts to wear her down with endless motion practice. Among other relief, Wife seeks sole custody of O.C., maintenance, equitable distribution of Defendant's pension, a share of the alleged appreciation in the value of the former marital residence and counsel fees for the services of Mr. Kaplan.

Defendant Husband also seeks an Order of sole custody for O.C. At trial, Husband attempted to show a pattern of Wife's interference with his parenting time. Husband claims that Wife's alleged inability to comply with Court Orders of visitation compelled him to seek 911 emergency assistance on several occasions. Husband denies that Wife is entitled to an award of maintenance or any award of equitable distribution with the exception of his pension with the New York City Police Department. Both parties seek child support from each other in the event [*3]that either is awarded custody.

Plaintiff Wife and Defendant Husband met in or around August of 1998 when Wife was seventeen years old and Husband was twenty seven years old. At that time, Wife and her then three year old daughter J.N. were living in her mother's ("Maternal Grandmother") public housing apartment located at 182 South Street in Manhattan. J.N.'s father is Mr. I. N. Wife never married Mr. N., who she claims statutorily raped her and was otherwise abusive in a myriad of ways.^[FN3] Wife lived on and off with Maternal Grandmother until a violent physical altercation between them in March of 2008 which further complicated their already volatile relationship. Maternal Grandmother passed away on September 8, 2010.

When Wife met Husband he was assigned to her apartment complex as a NYPD Police Officer assigned to patrol housing projects. The parties dated for several months. They stopped seeing each other sometime in the Spring or Summer of 1999 and then renewed their relationship sometime in 2002 when Wife was 22 years old and Husband was 32 years old. The parties were engaged in the Summer of 2004. They married on August 20, 2005 and moved into Husband's home located at 34 Curtis Place, Staten Island, New York.

The subject child O.C. was born on September 7, 2006. After O.C. was born, Husband continued to work as a police officer. He is still employed in that capacity. Husband credibly testified that Wife worked a number of jobs since the parties met, ranging from an office secretary to an exotic dancer at a gentleman's club. While the parties worked, O.C. was cared for by her godmother T. T. Wife or Husband would pick up O.C. after work. Both parties participated in O.C.'s care while they lived together. [*4]

(a) Husband's Infidelity

In or around July of 2007, Wife discovered that Husband was having an extramarital affair. She confronted him with her discovery. Husband eventually admitted his infidelities and promised to refrain from such conduct in the future. Unfortunately, in or around April 2009, Wife discovered that Husband was engaged in another extramarital affair. Wife discovered this when Husband's cell phone accidentally dialed Wife's number while Husband was engaged in a sex act with his then paramour. Wife was devastated to learn of Husband's repeated breach of fidelity, and his inability to remain faithful to her. Wife credibly testified that she confronted Husband who attempted to deny this second affair. Husband's denial enraged Wife, who threw her car keys at him in a fit of rage. Husband sustained minor lacerations to his face as a result of this incident. Husband did not call the police nor did he seek medical attention. Pictures of the resulting injuries were admitted into evidence at trial. (Def. Ex. W1-W6.).

(b) Wife's Residential History

Shortly after this incident Wife relocated with O.C. and J.N. from the former marital residence to an apartment located at 323 Westervelt Ave, Apt. 1H, in Staten Island, New York. In or around May of 2010, Wife relocated again to 175 Bement Ave in Staten Island, NY.In or around May of 2011, Wife moved a third time into her current residence located in Brooklyn, NY. Wife testified that she had to relocate from Staten Island to Brooklyn because Husband was constantly driving by her apartment and harassing her. Wife claimed that her tires were regularly slashed and her vehicle vandalized which actions she alleges were committed by, or at the direction of, Husband.

In addition, during the Summer of 2010, Wife left her cherished pet dogs Cha Cha and Chi Chi in the care of her neighbor, T. G.,who tortured and brutally abused these animals. He was arrested and criminally prosecuted for these acts in October 2010. Wife was issued a two year Criminal Court Order of Protection against Mr. G. which expired on January 9, 2013. Wife testified that these events made it even more difficult for her to remain living on Staten Island with O.C. and J.N. The Court takes judicial notice of the Order of Protection issued in the T.G. criminal case.

(c) 2 Girls 1 Cup

Wife admits that in December 2008, she and J.N. (then 12 years old),watched a YouTube video depicting the reactions of people who were watching a pornographic movie entitled "2 Girls 1 Cup." In this movie, as described by the Forensic Evaluator, two naked women are depicted defecating and vomiting into a cup and then consuming the contents. In the words of Dr. Havlicek, this is a:

"nauseating film that is about the most inappropriate,

highly inappropriate pornographic movie anyone could

ever imagine. It's extremely demeaning to women." (Tr. 12/12/13 p.116). [*5]

In his initial report, Dr. Havlicek determined, based on his interview of J.N., that J.N. was asked to videotape Wife watching the actual pornographic film so Wife could post her own "reaction video" on Youtube. At trial, Husband testified that Wife watched the actual underlying pornographic film with J., and not just the reaction video as conceded by Wife. Husband credibly testified that he was deeply concerned about this event and has brought his concern to the attention of a number of authority figures. The allegations were initially raised before the first presiding Justice in this divorce action who immediately Ordered an ACS investigation. No neglect or abuse charges were filed against Wife as a result of the investigation. Husband also informed the NYPD and the local District Attorney's office, however, no charges were filed against Wife. Husband's allegations as to the viewing of the actual film were unsubstantiated by ACS, and Husband was unable to prove at trial, by a preponderance of the evidence, that either Wife, or J.N. watched the "actual" pornographic video. Wife admitted, however, that she watched the reaction videos with J.N.

(d) Nude Photographs of O.C.

In August 2009, when O.C. was approximately three years old, Wife emailed nude photographs of O.C. to Husband (Def. Ex. F, G, NN). Husband testified that he protested the taking and transmission of these photos as inappropriate and exploitative of his child. Wife denies that Husband objected to the taking of these photos. Wife also repeatedly asserted her belief that the photos were "innocent" as it was her intention to only share them with Husband. While Wife presented as sincere in her belief that the photographs were innocent, her subsequent actions during trial evidenced a profound lack of judgment. Despite the fact that Wife was aware that Husband had made the taking of nude photographs a central issue at trial, in or around September of 2013, during the course of these proceedings, Wife knowingly allowed J.N. to take, and text, a topless picture of O.C., now considerably older, to Husband. This event triggered an angry reaction from Husband which developed into a bitter argument between the parties via text message. (Def. Ex. OO)

In addition to the taking and transmission of nude photos, Wife further credibly testified that she bathed and/or showered nude with O.C. Wife claimed that Husband was aware of, and never objected to this practice. Moreover, Wife claimed that Husband also showered nude with O.C. when she was young. While Husband admits that he showered with O.C. as a baby, he claims he wore a bathing suit, a position Wife views as ridiculous.

(e) Wife's Relationship with J.N.

As J.N. got older, her relationship with her mother became increasingly strained. J.N. was not doing well academically and Wife was not sure what to do with her. Wife testified that J.N. was became increasingly "rebellious" and angry over the circumstances surrounding Wife's break up with Husband, including the investigations by ACS and the District Attorney's office. On or around November 17, 2009, Wife agreed to allow J.N. to go live with her father I. N. in New Rochelle, New York. Wife registered J.N. in school in New Rochelle on November 23, 2009.

Although Wife willingly allowed J.N. to go live with Mr. N, she credibly testified that she remained concerned about her daughter's well being while in the care of her father. Wife's [*6]concerns were substantiated when she learned that, on at least one occasion, Mr. N climbed into bed with J.N. wanting to "cuddle." Wife testified that this event made J.N. very uncomfortable. Wife further testified that Mr. N. was also very aggressive with J.N. and restricted her ability to communicate with her mother. Wife testified that one on occasion Mr. N. smashed J.N.'s cell phone against a wall. On or about December 11, 2009, Wife filed a Writ of Habeas Corpus in Richmond County Family Court to secure J.N.'s return. J.N. lived with Mr. N. until January 2010 when she returned to Wife's home. The Court takes judicial notice of Wife's Writ of Habeas Corpus and related court documents filed under Richmond County Family Court docket number V-06003-09.

In November 2010, when Wife was pregnant with her youngest child A.A., she discovered J.N. (then 13 years old) at home alone in her bedroom with a young man who appeared to be over the age of 18. J.N. was in her underwear and the boy was hiding in a closet. Wife reacted by shouting at J.N. and striking her on the back. Wife attempted to lock the door to the apartment and call the police for assistance, but the young man escaped. When confronted by her mother, J.N. initially denied that she was having intercourse with the boy. However, Wife took her to the Doctor the next day for a checkup and the Doctor confirmed that she was likely having intercourse. (Tr. 5/30/13 P129). Wife testified that after the incident J.N. was "mortified."

J.N. responded to the incident by running away to Albany to stay with Wife's sister, M. O. Wife is estranged from her sister because she allegedly married the man Wife believes to have murdered their father. Fearful for J.N., and receiving no cooperation from her sister, Wife drove up to Albany, enlisted the help of local police, locked J.N. in a car, and brought her back home. When asked at trial how she believed she handled the situation Wife explained that she "gave herself a lot of credit" for not "beating her up." Wife exclaimed that she "dealt with it better than most people would". (Tr. 5/30/13 P128-130).

(f) Wife's Relationship with J. A.

After Wife relocated to Brooklyn, she began an intimate relationship with Mr. J. A., a high school acquaintance of Husband, and a friend of Husband's brother. The relationship was strained at times and on one occasion became violent. In March of 2010, Wife became pregnant with her son, A.A. Wife admitted at trial that in May of 2010, after informing Mr. A. that she was pregnant, Mr. A. demanded that she have an abortion. A heated argument ensued wherein Mr. A. shoved her to the ground. Wife further testified that Mr. A. was arrested after this event, but that they later reconciled and she did not pursue criminal charges. At trial, Wife attempted to minimize the significance of this incident claiming that she and Mr. A. are a "couple" and "couples disagree all the time." (Tr. 5/3/13 P121). Wife also testified that Mr. A. had no criminal history prior to this incident.

Mr. A. did not move into Wife's apartment until September of 2011. Moreover, Mr. A. only cohabitated with Wife for approximately nine months, from September of 2011 to May of 2012. After this short period of cohabitation Mr. A. moved back to the Bronx. According to Wife, Mr. A.'s return to the Bronx was motivated by the fact that his tenant moved out and he was having a difficult time renting his apartment. It is undisputed that while they lived together, Mr. A., who earns over $100,000 a year as a school psychologist, contributed to Wife's living [*7]expenses on a routine and regular basis. However, Wife testified at trial that this financial support has decreased greatly since Mr. A. moved back into his own apartment. Wife and Mr. A. were in family counseling as of the time of trial. Wife hopes they will marry after she is granted a divorce from Husband.

(g) Puerto Rico Incident

On or about March 21, 2013, without the consent of Husband, or approval from this Court, Wife took O.C. to Puerto Rico for Mr. A.'s grandmother's funeral. It is undisputed that O.C. had never met Mr. A.'s grandmother and had no relationship with her. Indeed, when Wife discussed taking O. to Puerto Rico Husband objected and offered to have O. stay with him until Wife's return. Husband also objected because a portion of the trip would cut into his parenting time and he was scheduled to chaperone O.C.'s class trip the following day. According to Wife's testimony, the purpose of the trip was part bereavement and part vacation. Husband credibly testified that he vehemently objected to O.C. missing school for this purpose and was not willing to give up his parenting time. Wife admitted at trial that she told Husband that O.C. would not be accompanying her to Puerto Rico and that Husband would be able to chaperone her school trip and have his normal parenting time. Wife's representations were admitted into evidence in a series of text messages. (Def. Ex. CC).

Notwithstanding her assurances to the contrary, Wife took O.C. to Puerto Rico on March 21, 2013, causing O.C. to miss school and Husband's parenting time. Wife admits she did not inform Husband that she had taken O.C. until after the aircraft was on the tarmac, despite being expressly questioned by Husband regarding her intentions. Wife simply texted Husband: "We are on flight to Puerto Rico. Taking off now! You'll see O. when I get back the end of next week." (Def. Ex. CC) Wife admitted during trial that when she made these choices she knew that she was violating the Orders of this Court.

(h) Wife's Employment History

The parties dispute the number of jobs Wife has held since she started working in 1996. Husband testified that Wife has worked numerous jobs ranging from secretarial work to performing as an exotic dancer at an adult night club. Wife acknowledges that she has had a fluctuating employment history, but denies that she ever worked at an adult night club. Wife is currently employed byMr. J. D. as an administrative assistant earning approximately $15.00 per hour working approximately 20 hours per week for an approximate yearly salary of $15,600. (Tr. 6/13/13 P11) Wife has worked for Mr. D. on and off for many years. Wife called Mr. D. as a witness at trial. Mr. D. credibly testified that Wife's employment performance was "very good" and that she was "always on time" which is why he allowed her to return to his employ every time she indicated an interest in doing so. (Tr. 6/13/13 P15).

2. Defendant Husband.

Defendant Husband was born on October 12, 1971 and is currently 42 years old. Husband received his Bachelors Degree from Hunter College in 1993. He has been continuously employed as a Police Officer assigned to patrol housing projects since April of 1997. Husband met Wife in 1998 while on patrol at the housing projects located at 182 South Street in Manhattan. Wife is not the only woman Husband has "dated" who resides within his assigned [*8]area of patrol. Wife alleges that he makes a habit of courting those under his watch. At trial, Husband admitted that he has had relationships with at least two other women he met while working.

(a) Abuse of Police Authority

Husband has been the subject of at least one ongoing Internal Affairs Investigation for an alleged abuse of his authority as a police officer. Husband claims that this investigation was initiated after Wife filed false allegations about him. Husband further claims that the Internal Affairs Sergeant who initiated the inquiry was engaged in a sexual relationship with Wife. Husband testified that he reported this alleged conflict of interest to the Police Department which resulted in retaliatory false charges being lodged against him. Husband was placed on modified duty in 2009. His firearm was removed until October of 2010. Husband admits that this investigation has made his employment situation difficult at times.

Husband admits that, on at least one occasion between May 16, 2010 and September 14, 2010, he used his official access as a police officer to obtain information about the domestic violence incident that occurred between Wife and Mr. A. Husband claims that he did not know he was prohibited from accessing this information. This Court finds however that he accessed this information solely to further his own interests in this custody battle and not for any legitimate law enforcement reason. Husband's testimony on the investigation and his underlying actions was not credible. On or about September 24, 2013, Defendant agreed to settle the charges pending against him by admitting that he used the NYPD computers for personal reasons. As part of the disposition, Husband forfeited 15 vacation days. (Def. Ex. T, OO).

In addition to the allegations raised in the Internal Affairs investigation, Wife credibly testified that Husband would call 911 whenever she was late to drop off or pick up the subject child. Husband admitted to calling 911 when Wife was tardy. Husband concedes that he could have walked a short distance to the nearest police precinct and filed a Domestic Incident Report rather than utilize the 911 emergency response system. Husband claimed at trial that it was his right as a citizen to use the 911 emergency response system to report Wife's tardiness. However, Husband, as a police officer, knew, or should have known that 911 is intended for emergency use, not to document his visitation disputes. Husband received repeated warnings from his commanding officers about his use of the 911 system for non emergency purposes.

(b) Husband's Contact with Mr. N.

Wife also credibly testified that sometime in 2009, Husband sought out J.N.'s father (Mr. I. N.)and befriended him in order to get information to use against Wife in this custody battle. Specifically, Wife credibly testified that Husband told Mr. N., in sum or substance, that the parties were going through a divorce and that Mr. N. "should take [his] daughter away" from Wife as Husband was attempting to do with O.C. Husband's choice to involve a volatile individual such as Mr. N. in this litigation was a reckless act which could have had adverse consequences for J.N. As an experienced law enforcement officer, and a responsible adult, Husband should have known better than to try and involve Mr. N. in this case.

(c) Husband's Infidelity

[*9]While the issue of grounds in this case has been resolved on consent, Husband admits that he has had at least two extra marital affairs which were discovered by Wife during the course of the marriage. While admitting infidelity, Husband denies that his conduct caused Wife the degree of distress she claims to have suffered because Wife actively encouraged him to have sex with other women, and even took affirmative steps to effectuate these fantasies. In one such instant message exchange Wife went as far as to suggest that she would handle the hiring of a prostitute to arrange a sexual encounter involving Husband, herself and said prostitute (Def. Ex. X).

(d) Disney World

In July 2013, Husband took O.C. to Disney World during their annual vacation. Husband intentionally planned the trip without informing Wife that he was going to Florida and failed to provide a travel itinerary. Husband ultimately told Wife that he and O.C. would be leaving on July 17th while in fact, he left two days earlier on July 15th. At trial Husband openly admitted that this incident was motivated by a desire to get back at Wife for taking O.C. to Puerto Rico in March 2013 without his consent. However, Husband credibly testified that, in retrospect, it was a poor parenting choice and he acknowledged that it reflects badly on him before this Court. While the Court does not condone Husband's petty response, Husband's trip did not deprive Wife of any parenting time. Rather, all the days used for this trip were "his days".

(e) Husband's Employment History

On the subject of employment, Husband has been employed as a police officer since April 1997. He currently grosses approximately $96,924.00 per year. (Ex. CCC). Husband has no other income. Husband currently provides health insurance coverage for Wife, O.C. and J.N. While J.N. is not his biological child, Husband admitted at trial that he has been claiming J.N. as a dependent on his tax returns. Wife testified that she was not aware that he was claiming J.N. until she viewed his tax returns during this trial.



3. O.

The subject child O.C. was born on September 6, 2005. Both parents participated equally in her upbringing while they were living together. Pursuant to Court Order dated February 2, 2010 (Panepinto J.) the parties have enjoyed a split schedule of parenting time. It is clear from their testimony that both parents love O.C. and care about her well being. There are no allegations of neglect or maltreatment of O.C. by either parent. There are also no allegations of narcotics usage by either parent in this case. Husband testified that Wife drinks excessive amounts of wine while caring for O.C., but he failed to substantiate that Wife has an alcohol problem. Moreover, his testimony on this subject presented to this Court as exaggerated and otherwise not credible on the issue of Wife's alleged over consumption of alcohol.

O.C. attended preschool at Trinity Lutheran Preschool. The decision to place O.C. in preschool was a contentious one. When Wife relocated to Brooklyn after the breakup of the marriage, she wanted O.C. to attend school in Brooklyn, rather than on Staten Island. Husband objected and the parties could not come to a resolution without court intervention. Husband [*10]filed an Order to Show Cause datedJanuary 14, 2010 (Seq No. 004) before the then presiding Justice. By Order dated July 22, 2010, Husband was permitted to register O.C. for Universal Pre-Kindergarten at a New York City Public School using his address in Staten Island. When it came time to enroll O.C. in kindergarten, Wife again renewed her demand that O.C. attend school at PS 200 in Brooklyn. Husband responded with another Order To Show Cause to allow O.C. to continue school in Staten Island, and more specifically, to enroll O.C. in PS 35. By Order datedAugust 26, 2011, this Court granted Husband's motion and allowed O.C. to be enrolled in PS 35 to provide a measure of continuity during this transitional time in O.C.'s life.

There is no dispute that O.C. has thrived in PS 35, and is very happy there with many friends. Husband credibly testified that at times, particularly during her early years, O.C. has missed school, arrived late, or failed to complete her homework while in Wife's care. Wife makes no claims against Husband regarding any aspect of his ability to foster O.C.'s education.

By Order dated February 2nd, 2010, O.C. visits with each of her parents on a rotating split schedule with each parenting sharing approximately an equal amount of weekday and weekend time .

O.C. testified before this Court in camera on December 6, 2013. The minutes of this examination have been sealed for appellate review. Suffice it to say, O.C. is a lovely, bright, articulate child. The parties are privileged to share such a wonderful child.

4. Dr. Havlicek

Dr. Havlicek conducted a complete forensic examination which was provided to the Court on or around October 29, 2009 and an updated forensic examination of the parties which was provided to the Court on or about May 7, 2012. As he conducted the forensic evaluation Dr. Havlicek interviewed such collateral sources as he deemed clinically appropriate. Dr. Havlicek's reports were entered into evidence without objection. (Def. E's.LLL and MMM). Dr. Havlicek testified before this Court on November 12, 2013.

Dr. Havlicek described a number of events, many of which are detailed below, that evidence an unstructured, chaotic lifestyle when O.C. is with Mother. While Dr. Havlicek genuinely believes that Mother loves O.C., he concludes that Wife has repeatedly shown her decision making to be questionable, such that she is not the best parent to make decisions for O.C. Dr Havlicek testified that between the two parents Wife does not make the best role model for O.C. (Tr. 11/12/13 P22). Dr. Havlicek further testified that Wife is not in the best position to decide issues pertaining to O.C.'s education (Tr. 11/12/13 P50) or to set proper boundaries for O.C. (Tr. 11/12/13 P53). Finally Dr. Havlicek testified that out of the two parents, he believes that Wife is more likely to undermine O.C.'s relationship with her father. (Tr. 11/13/13 P63). Dr. Havlicek's report was well reasoned and his testimony credible. Dr. Havlicek's recommendation is that an order of sole legal and physical custody be granted to the Husband with parenting time awarded to Wife.

While the parties have been following a schedule of split parenting time pendente lite, a final award of joint custody is not a viable option for this child because, as conceded by the parties, the relationship them is too volatile and acrimonious to support such an arrangement. See Bliss on behalf of Ach v. Ach, 56 NY2d 995 (1982). Joint custody is inappropriate where the parties are antagonistic towards each other and have demonstrated an inability to cooperate on matters concerning the child. See Matter of Lawrence v. Davidson, 109 AD3d 826 (2d Dept. 2013.) Accordingly, the Court is faced with the difficult determination of which parent would be the more suitable custodial resource for O.C. In making this determination, the Court has considered whether each parent would foster the relationship between O. and the other parent. See Matter of Feliccia v. Spahn, 108 AD3d 702 (2d Dept. 2013). The Court has also considered which parent is better equipped to provide for the child's educational, emotional and social development. See Matter of Ganzenmuller v. Rivera, 40 AD3d 756 (2d Dept. 2007).

After considering the voluminous documentary evidence submitted at this trial, the testimony of the witnesses as observed by this Court, and after considering Dr. Havlicek's thoughtful recommendations, the Court agrees with the attorney for the child that while far from perfect, Defendant Father presents as the parent better fit to be the sole custodial parent of O.C. and better able to provide a stable, nurturing, environment for this child long term. See Matter of Andrews v. Mouzon, 80 AD3d 761 (2d Dept. 2011).

There is no doubt that Mother loves O.C. very much and is doing her best to raise O.C. in a happy home under somewhat difficult circumstances. Emotionally, Wife is a tremendous support for O.C. On balance, however, this Court finds that the poor choices made by Wife at various times in her adult life make her the less suitable custodial parent. A few examples bear this out:

a. Allowing J.N. to view reaction videos of a film ("2 Girls 1 Cup') that by all accounts is disgusting, pornographic, and demeaning to women evidences a profound lack of insight as to [*12]what material is appropriate for an adolescent girl, particularly one who has already presented with sexual promiscuity risk behaviors. While Husband was unable to prove, by a preponderance of the evidence, his allegation that either J.N. or Wife watched the "actual" video, Wife's decision to watch YouTube reactions with J.N. is troubling as it condones pornography and encourages it as an acceptable use of this child's time. The fact that Wife would knowingly open up her child's imagination to such an inappropriate concept as coprophagia shocks the conscience of the Court. Wife apparently failed to consider that allowing J.N. to watch people reacting to such a horrific video might spark an interest that would likely result in J.N. investigating the actual video on her own. The entire circumstance evidences a profound lack of judgment on the part of Wife. A parent's responsibility is to shield their children from the dark aspects of our society, not open the door to them.

b. Mother's decision to willingly allow J.N. to live with Mr. N., an individual who statutorily raped Mother at a similar age, is equally troubling to this Court. Exposing this adolescent girl to Mr. N. created a substantial risk that J.N. could be sexually exploited or otherwise harmed. Indeed, Wife would later learn that Mr. N. climbed into J.N.'s bed, looking to "cuddle" while J.N. was in his care. Further, even if Wife did not anticipate the risk of sexually inappropriate conduct by Mr. N., she did know that Mr. N. had an anger problem. Wife credibly testified that he physically abused her while she was pregnant and had threatened her in the past. On more than one occasion Wife thought it necessary to obtain an Order of Protection against Mr. N. for herself and J.N. Furthermore, it was established at trial that Mr. N. had little to no personal relationship with J.N. and failed to support her financially. Clearly, if Wife was having a hard time controlling J.N., the last person fit to assist as a responsible role model was Mr. N.

c. Wife's taking of nude photographs of O.C. and emailing them to Husband created a risk of harm to O.C. insofar as these nude images were sent over the internet. While it was clear at trial that Wife did not consider the photographs conceptually inappropriate, she clearly did not appreciate the risk of transmitting sensitive data. As Dr. Havlicek testified, even before he saw the photographs, their transmission to Husband was "completely inappropriate on a number of levels." (Tr.11/12/13 P26). Dr. Havlicek explained that regardless of Wife's intention, the electronic transmission of nude pictures of children in an era where pedophiles troll the internet is "completely impulsive, negligent and inappropriate". (Tr.11/12/13 P27). Moreover, during the course of this trial, and even though she knew Husband was opposed to the nude photographing of his child, Wife knowingly allowed J.N. to text a topless picture of O.C. to Husband, and then attempted to defend J.N.'s actions. (Def. Ex. NN & OO). This act indicates both a profound lack of sensitivity to the inappropriateness of this practice and a complete disregard for the stated objections of the other parent. In relation to the second picture of O.C. Dr. Havlicek testified that he was "flabbergasted" and that the picture was "totally inappropriate". (Tr. 11/12/13 P28).

d. Wife's numerous relocations with O.C., and Wife's unsteady romantic relationships have created an unstable living environment. Since April 2009 when this action started, Wife and O.C. have lived in at least three separate locations on Staten Island and Brooklyn. While Wife claims that these relocations were due to necessity, her ultimate decision to move to Brooklyn, knowing that Husband would object, was a poor choice that only fueled the animosity between the parties. Wife's decision to relocate also caused the transport and transfer of O.C. to [*13]become more complicated and costly, a concern that she repeatedly raised at trial. On an emotional level, Wife fostered a relationship between O.C. and Mr. A. and allowed him to move into O.C.'s home only to have him move out several months later. O.C. now has two siblings, each with a different father, neither of whom have evidenced any long term commitment to Wife. As reasoned by Dr. Havlicek, "A.C and J.A.'s relationship may very likely continue to be unstable, thereby subjecting O.C. [to] conflict, and possibly domestic violence". (Def. Ex. MMM).

e. It was proven at trial that Wife has strained relations with certain members of her extended family. For example, Wife does not currently speak with her sister because Wife believes that her sister married the man that murdered their father. This is the Aunt that J. sought refuge from when she ran away. While Wife properly sought court intervention to get her sister to surrender J.N., this situation is hardly appropriate for any child. Wife has also had violent relationships with both of her other children's fathers. Dr. Havlicek credibly testified as to his concern that Wife's volatile relationships may likely continue and that such relationships provide an inappropriate living environment for O.C..

f. Finally, Wife testified at trial that she allows J.N.'s boyfriend, who is seventeen, to sleep overnight in their home. (Tr. 4/23/13 P6). The Court notes that at the time Wife testified J.N. was sixteen and thus below the legal age of consent. See Penal Law Section 130.05. While Wife testified that she does not allow J.N.'s boyfriend to sleep in J.N.'s room, the Court find's Wife's testimony to be not credible.

All of these poor choices by Wife lead this Court to be concerned about O.C.'s welfare should Wife be granted sole custody. In contrast, Husband, while not perfect, is by far the more stable and reliable custodial parent. Unlike Wife's constant relocation, Husband has remained living in the former marital residence which he has owned since before the marriage. There is no evidence that Husband has exposed O.C. to anyone he is involved with on a romantic basis. When he is working or otherwise unavailable for O.C., Husband's mother, with whom O.C. has a close, loving relationship, cares for O.C. as she has done for many years. O.C. is also close with Husband's sister and her children.

While it is true that Husband is often unnecessarily rigid, and has animosity towards Wife, there has been no evidence offered at trial to indicate that he has ever acted inappropriately toward O.C. or in her presence. For example, Wife makes much of Husband's history of infidelity. Assuming these extra marital relationships were relevant when assessing the character and judgment of Husband ^[FN4], Wife's attempt to use these affairs as a basis to deny custody to Husband rings hollow. As credibly testified by Husband, and not denied by Wife, the parties voluntary engaged in sexual conduct with other women on at least one occasion. Moreover, Husband credibly testified, and offered documentary evidence which indicated that Wife desired to have sexual relations with another man, and further desired to hire a prostitute to have [*14]relations with her and Husband. (Def. Ex. X) Husband also credibly testified that the parties were listed by Wife on a website known as "Swappernet" dedicated to swapping sexual partners. While this Court does not make light of the emotional pain Wife suffered when she discovered Husband's infidelity, this Court does not believe that Husband's actions preclude an Order of Custody to him, particularly under these circumstances.

Wife also properly points out that Husband has at times engaged in conduct unbecoming of his status as a police officer. Wife established at trial that Husband frequently "dated" women he met while on patrol, unnecessarily utilized the 911 emergency telephone system, and even used his status as a police officer to gain access to sealed records for his use in this divorce. While not excusing this conduct, which the Court considers deeply troubling, Husband has taken responsibility for the departmental charges against him, admitted many of his errors, and has suffered professional consequences within the NYPD as a result.

While the evidence at trial indicates that Husband has certain weaknesses, the Court deems that these flaws, when balanced against Wife's fitness to be O.C.'s custodial parent, do not preclude an award of sole legal and physical custody. See Gagliardo v. Gagliardo, 151 AD2d 720 (2d Dept. 1989).

For the reasons set forth above, and after considering all the relevant factors presented by both parties at trial, including the recommendations of the forensic evaluator and the position of the attorney for the child, Husband is hereby granted an Order of sole physical and legal custody of O. C. subject to Wife's parenting time schedule as detailed herein. See Matter of Edwards v. Rothschild, 60 AD3d 675 (2d Dept. 2009); see also, Matter of Lovitch v. Lovitch, 64 AD3d 710 (2d Dept. 2009); Matter Osbourne S. v. Regina S., 55 AD3d 465 (1st Dept. 2008). Husband is hereby directed to confer with Wife on all issues relating to education, religion and medical matters. Husband shall, however, have final decision making authority with respect to these and all other major issues. Each party shall retain authority to make day to day decisions while they are with the child. Both parents shall have free access to O.C.'s medical and educational records. Each parent shall be responsible for securing said information. Both parties shall be entitled to attend all school, extracurricular and significant events in O.C.'s life.

2. Parenting Time

While Husband is granted an Order of sole legal custody with final decision making, this does not end the analysis. Wife shares a loving, close bond with O.C. which cannot be minimized. Both parties and the attorney for the child agree that the current schedule of switching parenting time mid week is not working. Wife has also credibly testified that her vehicle is at times unreliable which has made O.C. late for school or for parenting time with her father. Husband also credibly testified that at times O.C. has missed school, arrived late at school, or has not completed her homework when returning from Mother's home. The attorney for the child also urges that O.C. not remain in the position of having to switch homes several times during the school week .These considerations suggest that the following parenting schedule is in O.C.'s best interest. This schedule shall commence May 1, 2014 with Mother having her first weekend visitation beginning from pickup from school on Friday May 2, 2014 and continuing in accordance with the schedule set forth below. [*15]

Plaintiff Mother shall have alternate weekend visitation beginning with pick up from school on Fridays and ending with drop off at school on Monday morning. In addition, Mother shall have an overnight visit every Monday night which shall commence with pick up from school on Monday and drop off at school on Tuesday morning. In addition to this overnight visitation schedule Mother shall be entitled to additional visitation every Wednesday night with pickup from school and drop off curbside at the child's home at 8:30 P.M. Wife shall be responsible for ensuring that O.C. does her homework during the Wednesday visit.

When school is not in session, all pickups and drop offs shall be by Mother curbside at the child's residence. This allows the child to wait at home in the event Mother is running late for any reason, as follows:

a. On Fridays when school is not in session, pick up by Mother shall be at 3:00 pm curbside from child's home;

b. On Mondays when school is not in session, unless superceded by the holiday schedule below, if mother had the child the day before (Sunday) then mother shall keep the child until Tuesday with drop off by Mother at school or if school is not in session that Tuesday then dropoff shall be 10:00 am curbside at the child's home;

c. On Mondays when school is not in session and mother did not have the child the day before (Sunday) then mother shall pick up the child on Monday morning curbside at 10:00 am with dropoff by Mother at school on Tuesday morning or if school is not in session that Tuesday then dropoff shall be 10:00 am curbside at the child's home;

d. On Tuesdays when school is not in session, drop off shall be by Mother at 10:00 am curbside at the child's home.

e. On Wednesday when school is not in session, pickup shall be at 3:00 pm curbside from child's home with drop off curbside at the child's home at 8:30 p.m.

a. Holiday Time.

The parties shall alternate all of the major holidays and school vacations as set forth below. Parenting time shall commence at 10:00 a.m. on the first day of the holiday or vacation period and shall conclude 8:30 p.m. on the final day of the visit unless otherwise specified below. Mother shall pick the child up from Father's home curbside at the start and conclusion of holiday and vacation time. In the event that Father has a holiday during Mother's ordinary parenting time then Father shall pick up and drop off O.C. curbside from Mother's residence in accordance with the holiday schedule set forth herein.

Holidays that fall on school days such as Halloween and the child's birthday shall commence at school dismissal (or 3:00 p.m. if there is no school) and end at 8:30 p.m. Mother's parenting time for Christmas break, Spring break, and Winter break shall include overnights for any weekday parenting time.

Mother's Day shall always be with Mother and Father's Day shall always be with Father. Each parent shall have a total of two non-consecutive weeks of vacation with the child during the months of July and August. One week shall be in July; the other week shall be in August. Each [*16]party shall designate by email their vacation weeks by May 1 of each calendar year or be subject to the other parent's designated weeks. Mother shall be granted first choice in the event that both parties seek the same weeks provided she has timely designated her weeks in accordance herein.

The following holidays shall be alternated:

Child's Birthday:even years: Motherodd years: Father

Thanksgiving:even years: Motherodd years: Father

Christmas Eve:even years: Fatherodd years: Mother

Christmas Eve visit shall begin at 4 p.m. and end at 12 p.m. on Christmas Day.

Christmas Day:even years: Motherodd years: Father

New Years Eve:even years: Motherodd years: Father

New Years Eve visit shall begin at 4:00 p.m. and end at 12:00 p.m on New Years Day.

New Years Day:even years: Fatherodd years: Mother

Martin Luther King Day:even years: Motherodd years: Father

President's Day:even years: Fatherodd years: Mother

Good Friday:even years: Fatherodd years: Mother

Easter:even years: Motherodd years: Father

Memorial Day:even years: Fatherodd years: Mother

Fourth of July:even years: Fatherodd years: Mother

Labor Day:even years: Motherodd years: Father

Halloween:even years: Motherodd years: Father

Columbus Day:even years: Fatherodd years: Mother

Veteran's Day:even years: Motherodd years: Father

Christmas Vacation: the parent with the first weekend shall have O.C. until Wednesday of the vacation week at 8:30 p.m. The parent with the second weekend shall have O.C. from 8:30 p.m. Wednesday until Sunday at 8:30 p.m.

Winter Break:the parent with the first weekend shall have O.C. until Wednesday of the vacation week at 8:30 p.m. The parent with the second weekend shall have O.C. from 8:30 p.m. Wednesday until Sunday at 8:30 p.m.

Spring Break:the parent with the first weekend shall have O.C. until Wednesday of the [*17]vacation week at 8:30 p.m. The parent with the second weekend shall have O.C. from 8:30 p.m. Wednesday until Sunday at 8:30 p.m.

b. General Matters:

Each parent shall ensure that homework is completed and the child attends her school activities. The parent who is enjoying time with the child shall be responsible for arranging at least one phone conversation per day to allow O.C. to have daily phone contact with the other parent. It is the responsibility of the parent enjoying parenting time to arrange for child care, or to take off time from work, as may be appropriate in that parent's discretion. Each parent shall inform the other if the child has missed school due to illness. Illness of the child shall not be a basis to withhold visitation absent hospitalization which shall be immediately communicated to the other parent.

Each parent is responsible for notifying the other parent in writing when they intend to take the child overnight outside of the New York tri-state area. If the child is to be taken out of the New York tri-state area, then an itinerary of the travel plans must be provided with contact information.

The parenting time schedule delineated herein may be modified or supplemented by such additional and further visitation as agreed upon by the parties in an email, text or other writing.

This action was commenced before the 2010 revisions to awards of final maintenance [*18]which were intended to apply to actions commenced after the effective date. In determining whether to award spousal maintenance under DRL §236(B), the Court must consider statutory factors. After consideration of these factors, the factors deemed relevant to the present matter are (a) the duration of the marriage; (b) the present and future earning capacities of both parties; and (c) the ability of the party seeking maintenance to become self supporting and the period of time and training necessary therefor. See DRL 236 (B)(6)(a); see also, Monroe v. Monroe, 71 AD3d 647 (2d Dept. 2010). The purpose of an award of maintenance is to enable the recipient spouse to become economically independent, and the duration of such an award should be the length of time the spouse will need to become self-supporting. See Benzaken v. Benzaken, 21 AD3d 391 (2d Dept. 2005).

The parties were married in August of 2005 and this action for divorce was commenced in April of 2009. Wife is thirty three years old and has a 10th grade education. Wife has been employed since 1996 but has changed jobs frequently. Wife has also suffered through long periods of unemployment. While Wife's income is not reported in her Statement of Net Worth her current employer, J. D., credibly testified that Wife works approximately 20 hours a week at a rate of $15 an hour. Accordingly, Wife's yearly income from her employment is approximately $15,600. Husband's income is considerably higher as his 2012 tax return indicates gross income of $96,924. In her written summation, Wife seeks $800 a month in non durational maintenance. However in her trial testimony, to which she is bound, Wife requested $500 a month for a period of four years. (Tr. 2/28/13 P47). Husband opposes any award of maintenance to Wife.

The purpose of durational maintenance is to encourage and foster a spouse's ability to become self supporting. See Bloom v. Petryk-Bloom, 2013 NY Slip. Op. 1367 (2d Dept. 2013). When considering the duration of maintenance the Court must consider the amount of time it will likely take, through education and training, for a spouse to become self supporting. See Krigsman v. Krigsman, 288 AD2d 189 (2d Dept. 2001). Here, Wife has limited education, and limited income potential, however, as Dr. Havlicek testified, "her situation would be immeasurably improved" if she obtained an education. (Tr. 11/12/13 P34). Moreover, Wife testified that she has an interest in going to college, but that she is currently unable to afford it. (Tr. 2/28/13 P42-43). The Court agrees with Dr. Havlicek's assessment and credits Wife's aspirations for higher education. Accordingly, if awarded maintenance of a sufficient amount and duration to facilitate further education and training Wife can likely develop her skills and become self supporting. See Love v. Love, 251 AD2d 631 (2d Dept. 1998).

After considering the statutory factors, with substantial weight afforded to the aforementioned factors, the Court hereby awards Wife durational maintenance for two years and six months in the amount of $500.00 per month, as requested by Wife. See Palestra v. Palestra, 300 AD2d 288 (2d Dept. 2002). This award of maintenance is considered rehabilitative in nature and is primarily intended to afford Wife an opportunity to seek out training and education to supplement her employment skill set. See Ferraro v. Ferraro, 257 AD2d 596 (2d Dept. 1999); Hildreth-Henry v. Henry, 27 AD3d 419 (2d Dept. 2006). Specifically Wife is encouraged, though not required, to obtain her GED and further her education or training. The award of maintenance will terminate upon the death of either party, the Wife's remarriage, or upon modification. Domestic Relations Law § 236[B][6][c] Gold v. Gold, 276 AD2d 587 (2d Dept. [*19]2000). This award will be taxable to the recipient and tax deductible to the payor. Lee v. Lee, 18 AD3d 508 (2d Dept. 2005). The first payment shall be made on or before May 1, 2014 and shall be made monthly thereafter on the first day of each month.

a. Retroactivity

Generally an award of maintenance is retroactive to the date the application was first made. Caviolo v. Caviolo, 155 AD2d 410 (2d Dept. 1989). Here the application was first made in Wife's Verified Complaint dated March 9, 2010. However, under the unique circumstances present in this case the Court finds a retroactive award to be inappropriate. By Notice of Motion dated May 19, 2010 (Seq #005) Wife sought an award of temporary maintenance, which was granted. By Notice of Motion dated October 21, 2010 (Seq #009) Husband moved to renew and reargue Wife's motion for pendente lite support, and that motion was granted. Upon renewal the award of temporary maintenance was vacated by this Court as Wife was being supported by her then fiancé J. A. Now, having the benefit of a full trial, Wife credibility testified that in or around May of 2012 Mr. A. ceased cohabitation with Wife. While Mr. A. still provides some varying support as they have a child in common (A. A.) this unclassified support is inconsistent and not mandated by any Court Order. Accordingly, as it was determined that during the pendency of this action Wife was not entitled to support, but that she now is, the award herein is not intended to be retroactive in nature. In addition, the Court notes that the rehabilitative award herein is intended primarily for Wife to seek out training or education, both prospective endeavors.

The Child Support Standards Act (CSSA) presumptively results in the correct amount of child support to be awarded to the custodial parent. Applying the statutory percentage of 17% to the combined parental income will provide the appropriate level of support to meet the basic needs of the subject child.

According to Husband's 2012 tax return Husband's gross income for child support purposes is calculated at $96,924. His gross income shall be reduced by $9,287 to account for his payments of Social Security, Medicare and New York City taxes. This amount must be reduced again for the yearly maintenance award herein by the amount of $6,000. See Lee v. Lee, 18 AD3d 508 (2d Dept. 2005). These calculations result in an adjusted gross income of $81,637.

While the Court is directed to utilize the parties' income as reported in their most recently filed tax return to calculate child support, there is authority to use more recent income information where appropriate. See Matter of Lynn v. Kroenung, 97 AD3d 822 (2d Dept. 2012); See Also Eberhart-Davis v. Davis, 71 AD3d 1487 (4th Dept. 2010). Here, Wife claims $4,760 gross income on her 2012 tax return. However the testimony offered at trial indicates that Wife is currently earning substantially more than she reported in 2012. Therefore, Wife's income will be calculated in accordance with the evidence at trial. Wife's currently employer, J. [*20]D. credibly testified that Wife currently works 20 hours a week at a rate of $15 an hour. While he indicated that her work hours may increase, that increase is currently speculative. In accordance with her employer's credible trial testimony, Wife's yearly income from her employment is approximately $15,600. While the statute requires that the Court deduct Social Security, Medicare and New York City taxes "actually paid" from that amount, no tax information has not been provided to the Court, and it has not been established that Wife pays taxes on her income. As the Court is unable to factor these deductions, Wife's entire income shall be used to calculate child support. Prospective maintenance to be received by Wife is not to be included as income when calculating her income for purposes of child support. See Shapiro v. Shapiro, 35 AD3d 585 (2d Dept. 2006).

The combined parental income for purposes of calculating child support is $97,237. Applying the statutory percentage of thirty one percent (17%) to the combined parental income results in a combined child support obligation of $16,530. Wife's pro rata share of the $16,530 guidelines child support obligation is 17% which equates to $2,810 a year or $234 a month.

However, after considering the parenting schedule as set forth herein, the Court finds the CSSA guidelines amount of support to be unjust and inappropriate. See Matter of Moore v. Abban, 72 AD3d 970 (2d Dept. 2010). Wife credibly testified at trial that the cost of the Verrazano Bridge is a burden to her financially. Husband also credibility testified that his work schedule often makes it difficult for him to transport O.C. In consideration of these factors, the Court issued the parenting plan set forth herein, wherein Wife is responsible for all the transportation related to her visitation. Under the parenting schedule Wife will cross the Verrazano Bridge approximately thirteen times a month. Wife credibly testified that she has an Ezpass account. The Court takes judicial notice that the toll for a Brooklyn resident crossing the Verrazano Bridge with Ezpass is $10.76. Accordingly Wife will pay approximately $140 a month in tolls. In consideration of this cost, the Court hereby deviates from the CSSA guidelines amount of support by one half of the monthly toll amount, or $70 per month. This reduction is in lieu of Husband sharing equally in the transportation of O.C. and is hereby deemed a non-monetary contribution on the part of Wife. See FCA §413(1)(f)(5). The Court also notes that Husband earns substantially more than Wife. See FCA §413(1)(f)(7).

For the reasons set forth above Wife is hereby Ordered to pay child support in the amount of $164 a month. As Husband's maintenance obligation of $500 a month is more than Wife's child support obligation, and to avoid cross payments, Husband is hereby authorized to deduct $164 from his monthly maintenance payment for the next two and one half years. Accordingly, for the duration of the maintenance award herein Husband is only required to pay the sum of $336 monthly, which shall cover Wife's child support obligation. As indicated above, Husband's first payment of maintenance is due on May 1st 2014.

As O.C. is only seven years old as of the time of this decision Wife's support obligation will outlast the maintenance award. As Husband's prospective maintenance payments were deducted from gross income for the purpose of calculating child support the parties are entitled to an automatic recalculation of child support at the time Husband's maintenance obligation ends. See DRL §240 [1-b] [b] [5] [vii] [c] see also Navin v. Navin, 22 AD3d 474 (2005); Jarrell v. Jarrell, 276 AD2d 353 (1st Dept 2000). The last payment under Husband's [*21]maintenance obligation is due on November 1, 2016. Upon completion of Husband's maintenance obligation the amount of child support payable by Wife shall be subject to an automatic re-calculation of CSSA guidelines upon application to any court of competent jurisdiction. See Murphy v. Murphy, 6 AD3d 678 (2d Dept. 2004); see also, Polychronopoulos v. Polychronopoulos, 226 AD2d 354 (2d Dept. 1996); Lenigan v. Lenigan, 159 AD2d 108 (3rd Dept. 1990). At that time Wife shall be entitled to the same deviation for the transport of the child, utilizing the Ezpass discounted price of the Verrazano bridge toll at that time. Wife's first actual payment of child support shall commence on December 1, 2016 and shall be paid on the first of every month until the child reaches the age of 21 or become otherwise ineligible for support (i.e. emancipation).

While the tax consequences of child support were never raised at trial the Court deems it equitable, in that both parties are wage earners, that the parties alternate the right to claim O.C. as a dependant on their tax returns. See Skladanek v. Skladanek, 60 AD3d 1035 (2d Dept. 2009). Husband shall be entitled to claim O.C. on his 2014 tax return, and Wife on her 2015 tax return.

a. Retroactivity

Generally an award of child support is retroactive to the date the application was first made. See Miklos v. Miklos, 9 AD3d 397 (2d Dept. 2004). However, by Order dated May 26, 2009 (Panepinto J.) Wife was deemed to be the "de facto" custodial parent for purposes of determining the proper recipient of pendente lite child support. See Rubin v. Della Salla, 107 AD3d 60 (1st Dept. 2013); see also, Clerkin v. Clerkin, 304 AD2d 784 (2d Dept. 2003). Therefore, the award of sole custody to Husband herein is a transfer of the obligation to pay child support from Husband to Wife. Accordingly, under the circumstances in the present case, the child support award herein shall be retroactive to the date of this decision, which is the date custody of the child was transferred to him. See Shapiro v. Shapiro, 35 AD3d 585 (2d Dept. 2006); see also, Gilkarov v. Gilkarov, 91 AD3d 521 (1st Dept. 2012). The Court notes that on page fifteen of his written summation Husband agrees that "the child support payments should be made effective as of the date upon which the transfer of sole custody of O.C. to [Husband] takes effect."

b. Unreimbursed Medical Expenses

In motion sequence number thirteen, aspects of which were referred to the trial court, Husband makes an application for the payment of unreimbursed medical expenses. At trial Husband reasserted this claim and provided voluminous documentary evidence of unpaid medical bills. (Def. Ex. KKK). By prior Order of the Court dated June 22, 2009 (Panepinto, J.) Husband consented to maintain health insurance for O.C. and J.N. and to pay 80% of any unreimbursed medical expenses for O.C. only. The Order is silent as to Wife and J.N.'s unreimbursed medical expenses. At trial, Husband credibly testified that Wife failed to pay her twenty percent share of certain unreimbursed medical expenses incurred by O.C. and J.N. Husband seeks reimbursement in the amount of Wife's share of these expenses in the amount of $500.48. See Motion Seq. No. 13, request for relief "D."

Husband's claim for reimbursement for Wife's share of O.'s unreimbursed medical [*22]expenses is sufficiently supported by the record. Husband provided documentary evidence of payments and amounts due and owing regarding medical expenses for O.C. However, as the Order dated June 22, 2009 only directed Husband to pay the unreimbursed medical expenses for O.C., any payment made by Husband on behalf of J.N. will not be addressed by this Court. After considering the documentary evidence submitted in support of Husband's claim, together with Husband's credible testimony at trial, Wife is hereby Ordered to pay Husband the sum of $488 representing her established 20% share of the unreimbursed medical expenses incurred by O.C. This payment shall be made within 60 days of this decision.

In addition to the evidence of O.C.'s treatment and care, Husband has provided documentary evidence of Wife's unreimbursed medical expenses incurred during the course of this proceeding. While the June 22nd Order is silent as to Wife's expenses, the same approximate pro rata share should apply to Wife. Accordingly, after considering the documentary evidence submitted in support of Husband's claim, together with Husband's credible testimony at trial, Wife is hereby Ordered to pay Husband the sum of $12 representing 20% of her unreimbursed medical expenses. This payment shall be made within 60 days of this decision.

Going forward, the obligation to pay O.C.'s unreimbursed medical expenses is to be prorated in the same proportion as each parent's income is to the combined parental income as calculated for child support under the CSSA guidelines. See DRL '240(1-b)(c)(5)(v); see also, Goldberg v. Goldberg, 98 AD3d 944 (2d Dept. 2012). Accordingly, Husband is hereby Ordered to pay 83% of O.C.'s reasonable and necessary unreimbursed medical expenses and Wife is Ordered to pay the remaining 17%. Husband is hereby Ordered to maintain O.C.'s health insurance, however his decision to continue covering J.N., while commendable, is voluntary and will not be mandated by this Court.

c. Child Support Overpayments

Husband seeks repayment of alleged child support overpayments made to Wife in the amount of $1,692. By Order dated May 26, 2009, Husband was required to pay bi-weekly child support in the amount of $564. By Order dated June 3, 2010, an income deduction Order filed by Wife resulted in child support being deducted automatically from Husband's paychecks. Husband alleges that there was an overlap period where he made double payments to Wife by both sending a money order to Plaintiff and having income automatically deducted from his paycheck. (Def. Ex. HH.)

The Court hereby declines to award recoupment of amounts allegedly overpaid due to the strong public policy against child support recoupment. See Matter of Krowl v. Nighingale, 103 AD3d 726 (2d Dept. 2013); see also, Johnson v. Chapin, 12 NY3d 461 (2009).

Wife's claim for active appreciation in the former marital home is denied as not proven at trial. First, Wife failed to prove that the marital premises did, in fact, appreciate in value from the date they were married on August 20, 2005 to the commencement of this action. This failure of proof is fatal to her claim. See Karas-Abraham v. Abraham, 69 AD3d 428 (1st Dept. 2010). Second, even if Wife were successful in establishing an appreciation in value, she failed to prove that any appreciation was due to her efforts. See Linda D. v. Theo C., 96 AD3d 432 (1st Dept. 2012). While Wife testified at trial as to certain improvements to the home during the marriage, her testimony established that she played a minor role in directing those improvements. While Wife was credible as to the scope of her involvement, her limited contributions did not rise to the level where she would be entitled to an increase in value, had that increase been established at trial. See Dinoto v. Dinoto, 97 AD3d 529 (2d Dept. 2012).

b. Accounts (ING and Ameritrade)

Husband seeks a distributive award of one-half of the current value of Wife's Ameritrade investment account, and Wife's ING bank account. Wife seeks a reciprocal distributive award of one-half of the value of Husband's Ameritrade account. Wife admits that her Ameritrade account was created during the marriage, as Husband opened it for her. Wife claims that Husband's Ameritrade account was also created during the marriage though she offered no proof to substantiate this claim. Little to no evidence was offered at trial regarding the other accounts at issue and Husband credibly testified that his Ameritrade account is his separate property. Wife credibly testified that as of February 28, 2013 her Ameritrade account had a value of $5,156.41. However, the value of the account at the time it was created, or at the time of commencement was not established. The Court notes that Wife's Statement of Net Worth from the time of commencement does not indicate the existence of any investment accounts. (Def. [*24]Ex. H). The value of Wife's ING account was never established at trial. This failure of proof precludes a thoughtful distribution of those accounts. See Antoian v. Antoian, 215 AD2d 421(2d Dept. 1995). After consideration of the time that this divorce has been pending, and the failure of proof regarding the value and nature of the accounts, the Court declines to distribute these assets. See Gredel v. Gredel, 128 AD2d 834 (2d Dept. 1987); see also, Alper v. Alper, 77 AD3d 694 (2d Dept. 2010); Dudla v. Dudla, 50 AD3d 1255 (3rd Dept. 2008). Moreover, in deciding not to distribute these accounts the Court has considered the equities present in this case, the great inequality of income between the parties, Wife's lack of assets as compared to Husband, the limited nature of the maintenance award herein, and the lack of a distributive award to Wife in regards to the former marital home and personal property. See Scher v. Scher, 91 AD3d 842 (2d Dept. 2012). Under the circumstances presented the Court deems it equitable that each party keep the contents of the bank and investment accounts titled in their own name. See Ha v. Ha, 240 N.Y.L.J. 14 (Sup. Ct. Kings Cty. 2008). This decision is made in light of the personal property distribution, or lack thereof, as detailed below.

c. $4,000 Car Loan

In March of 2009, while the parties were still residing together as Husband and Wife, Wife requested Husband's assistance in the purchase of a vehicle to transport O.C and J.N. This request for financial assistance was recorded in a string of text messages which were admitted into evidence as Defendant's AAA. In the pertinent part of these text messages Wife states that Husband will get back whatever he "spot's her" and Husband extends "terms" of a $4000 loan with no interest for 12 months. While Wife does not explicitly agree to these "terms," she indicates that she will give him a check when she gets paid.

At trial Husband testified as to this text message exchange. Husband further testified that he obtained the $4000 that he gave to Wife from a tax refund, which was approximately $10,000. Despite Husband's characterization of the transaction as a "loan," Husband transferred to Wife what amounts to marital funds, as they were earned before the commencement of this action, while the Parties were still residing together. In reality, Husband loaned Wife money that was already hers. A marriage is an economic partnership, and there is a rebuttable presumption that funds accumulated during the marriage are marital funds, not separate property. See Mesholam v. Mesholam, 11 NY3d 24 (2008); See Cudar v. Cudar, 98 AD3d 27 (2d Dept. 2012). Husband presented no evidence at trial the that tax return constituted his separate property.

Unlike normal arms length business transactions, agreements between spouses involve a fiduciary relationship requiring the utmost good faith. See Rosenzweig v. Givins, 62 AD3d 1 (1st Dept. 2009). As such Courts must exercise strict scrutiny of agreements between spouses. See Barchella v. Barchella, 44 AD3d 696 (2d Dept. 2007). Agreements between spouses are more readily set aside in equity under circumstances that would be insufficient to nullify an ordinary contract. See Petracca v. Petracca, 101 AD3d 695 (2d Dept. 2012). Here, the general tone of the text message conversation that allegedly gave rise to the loan was not of the sort normally found in business transactions. Moreover, as a marriage is an economic partnership, the money "loaned" to Wife was already hers, and the purchased vehicle arguably marital property, though no claim for distribution of said vehicle is being made in this divorce. Under the circumstances, [*25]the Court declines to enforce the alleged loan made to Wife by Husband. In making this determination the Court notes that the vehicle purchased by Wife was used primarily to transport O.C., Husband's daughter.

d. Personal Property

Plaintiff seeks equitable distribution of various items of personalty allegedly left in the marital residence. In her written summation Wife has provided an extensive list of household items of which she claims are marital property, however the majority of these items were not testified to at trial. Moreover, while Wife testified as to certain items, such as a video gaming system, a wedding photo album, a washer dryer set, a living room set, and a bedroom set, she failed to establish a reasonable value for these assets, taking depreciation into account. See Post v. Post, 68 AD3d 741 (2d Dept. 2009); see also, Costello v. Costello, 268 AD2d 403 (2d Dept. 2000). Moreover, Wife failed to establish, through testimony or documentary evidence, the dates of purchase for these items, their value at the time of purchase, their current location, current value, or current condition. See Moller v. Moller, 188 AD2d 807 (3rd Dept. 1992); LaBarre v. LaBarre, 251 AD2d 1008 (4th Dept. 1998).

Husband, in response to Wife's claims, credibility testified that when Wife left his home she took the items that she wanted with her, such as the marital bedroom set from IKEA . (Tr. 11/21/13 P19). Wife also admitted that she took a television and laptop computer.Husband also credibly testified that certain of the identified items, such as the washing machine, were purchased before the marriage, and that other items, such as the dryer and second bedroom set were gifted solely to him. (Tr.11/21/13 P19). Husband credibly testified that he is unaware of the other items identified by Wife.

In light of the parties' complete failure to satisfy their respective burdens of proof regarding the value of claimed personalty, this Court is unable to direct any specific distribution of the items claimed by Wife or fashion a monetary distributive award representing their value. See Grendel v. Grendel, 128 AD2d 834 (2d Dept. 1987), leave dismissed 70 NY2d 693 (1987); see also, Alper v. Alper, 77 AD3d 694 (2d Dept. 2010); Michalek v. Michalek, 114 AD2d 655 (3rd Dept. 1985). Under the circumstances presented, each party shall be entitled to keep the personal property they currently possess, free and clear of any claims by the other. In making this determination the Court has considered its decision above that entitles both parties to retain their respective bank accounts and investment accounts. It is this Court's intention that the funds therein may be used to replace any items of personal property allegedly lost. Under the circumstances this is the most equitable way to distribute the parties' limited marital assets.

e. Husband's Retirement Benefits/Pension

On June 12, 2012 the Court Ordered Lexington Pension Consultants to appraise Husband's NYPD pension together with "any other pension, retirement accounts or similar entitlements". However, on August 17, 2012 the parties agreed, by So Ordered Stipulation, to vacate the appraisal Order and establish that Wife "shall receive one half of the coveture portion of Defendant's Pension with the NYPD pursuant to the Majauskas formula via Domestic Relations Order."

At trial, in addition to Husband's pension, Wife identified Husband's Deferred [*26]Compensation 457 Plan as a marital asset to be distributed. (Tr. 2/28/13 P60). While Wife, who was self represented on financial issues did clearly identify his Deferred Compensation plan as an asset and request the portion she was entitled to during the marriage. Moreover, the value of Husband's Deferred Compensation 457 Account was established in his Statement of Net Worth. The present action was commenced in April of 2009, Husband first Statement of Net Worth was prepared in May of 2009. According to that Statement of Net Worth, Husband's 457 Plan was worth approximately $71,779 at the time of commencement. Husband argues that Wife's claims should be limited to his pension, however, in his Statement of Proposed Disposition, of which the Court takes judicial notice, he states that Wife should "receive one half of the coverture portion of Defendant's retirement benefits with the New York City Police Department". (emphasis added).

Accordingly, Wife is hereby directed to contact Lexington Pension Consultants, or any other qualified pension evaluator, to prepare a Domestic Relations Order "DRO" to effectuate the distribution of her marital share of Husband's pension with the NYPD and her marital share of Husband's Deferred Compensation 457 Plan with the NYPD. The evidence at trial was sufficient to identify a portion of Husband's deferred compensation plan as a marital asset and establish Wife's right to an equitable share thereof. See DeJesus v. DeJesus, 90 NY2d 643 (1997); see also, DeLuca v. DeLuca, 736 N.Y.S.2d 651 (2001); Zufall v. Zufall, 109 AD3d 1135 (4th Dept. 2013). Wife's share of Husband's Pension shall be calculated as per the formula set forth in Majauskas v. Majauskas, 61 NY2d 481 (1984). Wife's share of Husband's Deferred Compensation 457 Plan is hereby limited to 50% of any contributions made by Husband and his employer during the course of the parties marriage, together with any gains or losses in the value of that portion up until the date of distribution. See Scarlett v. Scarlett, 35 AD3d 710 (2d Dept. 2006); see also, Hogle v. Hogle, 40 Misc 3d 1220(A) (Sup. Ct. Colombia Cty. 2013). In making this determination Court has considered Wife's contributions to the marriage, Husband's superior financial position, the middle class standard of living established through the marriage, the fact that Wife will have to obtain her own health care benefits, and the parties stipulation wherein they agreed that Wife would be entitled to 50% of the marital portion of Husband's pension.

As the party seeking distribution of the asset is it Wife's responsibility to prepare the Domestic Relations Orders "DRO" detailed herein, at her own expense, and to submit the DROs to the court on notice to Defendant Husband. See Auriemmo v. Auriemmo, 87 AD3d 1090 (2d Dept. 2011); see also, Cornish v. Eraca-Cornish, 107 AD3d 1322 (3rd Dept. 2013). In undertaking this responsibility Wife is strongly encouraged to seek out the assistance of counsel. Wife shall be responsible for any penalties, costs, or tax consequences resulting from this distribution. Wife is hereby directed to prepare the Domestic Relations Order, and file it, with notice to Husband. Husband is directed to comply with any requests from Lexington Pension Consultants, or the pension evaluator of Wife's choosing.

Wife's claim to any other retirement benefit associated with Husband's employment is hereby denied as improperly raised for the first time in her post trial written summation and otherwise not proven at trial.

f. Marital Debt

[*27]At trial Wife called her current employer, Mr. J. D. to testify as to her employment. Wife also inquired as to an alleged loan made to Wife in the amount of $2,500 to assist Wife as she moved out of the marital home and into a separate apartment. Wife argues that this loan should be a marital debt subject to equitable distribution.

As a marriage is considered to be an economic partnership expenses incurred prior to the commencement of the action and used for marital purposes are generally marital debt to be equally shared by the parties. See Diaz v. Gonzalez, 2014 NY Slip Op. 2010 (2d Dept. 2014). However, Wife's witness, Mr. D., credibly testified that he loaned Wife $2500 at the time she commenced the divorce on or about April 21, 2009. Moreover, it was established at trial that this loan was intended to fund Wife's move to a separate apartment from Husband. As the debt at issue was incurred after commencement, and was used for Wife's separate purposes, it is not a marital debt subject to equitable distribution. See Corless v. Corless, 18 AD3d 493 (2d Dept. 2005).

An award of counsel fees pursuant to Domestic Relations Law § 237 (a) is a matter within the sound discretion of the trial court, and the issue "is controlled by the equities and [*28]circumstances of each particular case". Morrissey v Morrissey, 259 AD2d 472 (2d Dept. 1999); see also, Timpone v Timpone, 28 AD3d 646 (2d Dept. 2006). In determining whether to award fees, the court should "review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions" See DeCabrera v Cabrera-Rosete, 70 NY2d 879 (1987); see also, Ciampa v Ciampa, 47 AD3d 745 (2d Dept. 2008). A final award of counsel fees, as is being sought in Wife's motion, can only be granted after conducting a hearing where the opposing party is afforded a "meaningful way of testing the attorney's claims relative to time and value." Patterson v. Patterson, 302 AD2d 507 (2d Dept. 2003); see also, Price v. Price, 113 AD2d 299 (2d Dept. 1985).

At trial, Wife failed to call a witness, or otherwise establish the value of Mr. Kaplan's services in such a way as to afford Husband the opportunity scrutinize the value of those services in an adversarial context. See Stang v. Stang, 173 AD2d 812 (2d Dept. 1991). As Wife failed to meet her burden of proof in relation to her counsel fee application her request for an award of counsel fees is denied. See Weinschneider v. Weinschneider, 50 AD3d 1128 (2d Dept. 2008); see also, Mojdeh M. v. Jamshid A., 36 Misc 3d 1209 (A) (Sup. Ct. Kings Cty. 2012). Wife's failure to call Mr. Kaplan as a witness was particularly egregious in this case as all of the legal work sought to be compensated for was rendered before the matter was transferred to this part. Accordingly, this Court had no opportunity to witness or otherwise assess any of the work performed by Mr. Kaplan. Wife's last minute attempt to cure her failure of proof by submitting billing information and an affirmation in her post trial summation is insufficient as an award of counsel fees cannot be based upon affirmations alone absent a stipulation between the parties. See Price v. Price, 113 AD2d 299 (2d Dept. 1985); see also, Sadofsky v. Sadofsky, 78 AD2d 520 (2d Dept. 1980)

Husband's application for reallocation of the Forensic Evaluator's fees is hereby denied. The Court notes that the initial fee allocation of 85% to Husband and 15% to Wife is appropriate under the financial circumstances of the parties. In addition, Husband called the Forensic Evaluator as a witness at trial, and the Forensic Evaluator's testimony recommended custody to Husband, which was awarded herein.

Motions

During the course of the pre trial proceedings in this matrimonial action a number of motions were reserved to this Trial Court. The majority of the issues raised in those motions have been addressed by the Court's decision herein, withdrawn, or deemed moot by the passage of time. The remaining issues are hereby resolved as follows:

a. Defendant Husband filed Order to Show Cause Sequence No. 004 on or about January 14, 2010. Therein, Husband requests a hearing to hold Wife in contempt for not abiding by the interim visitation Orders of this Court. While Husband credibly testified at trial as to various occasions where Wife was late to pick up, drop off, or was otherwise non-compliant with the visitation Orders of this Court, the proper relief for such a violation is "make-up visitation". See Vasquez v. Vasquez, 281 AD2d 301 (1st Dept. 2001). As Husband has been awarded sole physical and legal custody of O.C., and a substantial increase in parenting time, his application to hold Wife in contempt is denied. The Court has reviewed the balance of Husband's motion [*29]and determined that to the extent the issues raised therein are not resolved or withdrawn, the relief sought is denied in its entirety.

b. Defendant Husband filed Order to Show Cause Sequence No. 010 on or about November 9, 2010. Therein, Husband seeks custody of O.C. and requests an Order limiting Wife to supervised visitation, and prohibiting Wife from driving with O.C. or J.N. Husband's request for custody is granted herein. Husband's request for an Order prohibiting Wife from driving with O.C. and J.N. was not raised at trial and therefore, this relief is denied. Moreover, based upon the facts adduced at trial there is no indication that Wife is unfit to drive with her children. Husband's application to limit Wife to supervised visitation is also denied.

c. Defendant Husband filed Order to Show Cause Sequence No. 012 on or about May 13, 2011. Upon review all of the relief requested therein has been addressed by this decision, mooted, or withdrawn. Accordingly, the motion has been resolved.

d. Defendant Husband filed Notice of Motion Sequence No. 013 on or about May 30, 2013. Therein, Husband seeks various aspects of relief that have been resolved by this decision. The only outstanding aspect of this motion, Husband's request that Mr. J. A. be prohibited from having contact with O.C., is hereby denied. Husband's application for an Order prohibiting Mr. A. from having unsupervised contact with O.C. is not supported by the record. Wife has indicated a desire to continue the relationship with Mr. A. and testified that they have sought out professional therapy to address their relationship issues. Based upon the evidence at trial there is no legitimate reason to limit contact between O.C. and Mr. A. at this time. Mr. A. is O.C.'s brother A.A.'s father and part of that family unit. The Court notes that this decision is in accordance with the position taken by the Attorney for the Child.

Conclusion

For the detailed reasons set forth above, Father is granted a Final Order of Sole Custody of O.C. Mother is granted the extensive parenting time set forth herein. It is this Court's hope that this decision, and the less frequent exchanges mandated herein, will serve to provide a measure of stability in O.C.'s life and limit the contact between these parents.

For the reasons set forth above a Judgment of Divorce is hereby granted, on consent, to Plaintiff Wife on the grounds of constructive abandonment. As to ancillary relief: Wife is granted durational maintenance in the amount of $500 a month, for a period of two years and six month. This award of maintenance shall be reduced by the award of child support herein which requires Wife to pay Husband $164 per month. Accordingly, for two years and six months Husband shall pay Wife a monthly total of $336 in maintenance with a first payment due on May 1, 2014. After the period of maintenance ends either party shall be entitled to an automatic recalculation of child support in accordance with the terms set forth herein. The awards of child support and maintenance are both deemed to be non-retroactive for the reasons set forth herein. Husband is not entitled to recoup his alleged overpayment of child support. Wife is hereby Ordered to reimburse Husband for her share of unreimbursed medical expenses in the combined amount of $500 to be paid within 60 days of this decision. The Equitable Distribution of marital [*30]assets shall be effectuated as detailed herein. Wife's application for a final award of counsel fees is denied.

All requests for relief raised at trial, or by motion referred to trial, not explicitly addressed herein are denied. Husband's attorney is hereby directed to prepare and file a

Judgment of Divorce, Findings of Fact and Conclusions of Law in accordance with this decision within 60 days or this action may be deemed abandoned.

This Constitutes the Decision and Order of the Court

Dated:April 17, 2014

E N T E R:

__________________________________

HON. Catherine M. DiDomenico

Acting Justice Supreme Court